He gets to assign the decisions if he’s in the majority, which can give him some influence on how broad or narrow a decision will be (and if you believe Woodward’s book, Berger tried to join majorities for just that purpose).
That’s surprisingly unfair. At most, the Fifth Circuit panel’s decision was that “Sleeping for an indeterminate amount of time and during indeterminate portions of a capital murder trial is not necessarily ineffective assistance of counsel based on United States Supreme Court precedent.”
Jones was bound by Supreme Court and 5th Circuit precedent that a defendant making an “ineffective assistance of counsel” claim must show that his trial lawyer’s performance was grossly substandard. More relevant to this case, the defendant must also show that if not for that poor performance, the trial’s outcome likely would have been different. See Strickland v. Washington.
In Burdine v. Johnson, nobody could remember when the defendant’s attorney had nodded off and when he’d been awake, so the defendant could not prove that his attorney’s actions (or inaction) had effected the outcome of the trial. Plus, the defendant had confessed to the murder he was accused of, so all indications were that he was guilty anyways. As a result, Supreme Court precedent required that the Court reject the defendant’s argument.
It sounds harsh, but the alternative was to ignore precedent established by the Supreme Court. The alternative also gives losing defense attorneys an easy out – losing a death penalty case? Nod off for a while and your client gets a new trial!
Did Jones make the right decision? I’m certainly wary. But I don’t think your snippet gives a fair representation of her decision.
For those that are interested [chirp . . . chirp . . . chirp], the 5th Circuit re-heard the case en banc, and overturned the decision entered by Jones’ panel. Wary of creating an easy out for defense attorneys and people indicted for capital murder, the en banc panel limited its holding to “the egregious facts” before it. They “decline[d] to adopt a per se rule that any dozing by defense counsel during trial merits a presumption of prejudice.” It was only because of the “repeated unconsciousness of Burdine’s counsel through not insubstantial portions of the guilt-innocence phase of Burdine’s capital murder trial warrants a presumption of prejudice.” [Note bene: among other things, the dissent absolutely devoured the phrase “not insubstantial.”]
Just a layman but considering the limited resources of most defendants who might possibly get subpar counsel this sounds like a stacked deck to me.
It seems to me that the facts in Strickland V. Washington from FindLaw are quite a bit different from an attorney sleeping through a trial.
The attorney in Strickland made a couple of judgement calls at a sentencing hearing that the defendant (appellant?) tried to use to get his sentence overturned. That isn’t even in the same ballpark as sleeping.
From the FindLaw writeup:*
“In preparing for the sentencing hearing, defense counsel spoke with respondent about his background, but did not seek out character witnesses or request a psychiatric examination. Counsel’s decision not to present evidence concerning respondent’s character and emotional state reflected his judgment that it was advisable to rely on the plea colloquy for evidence as to such matters, thus preventing the State from cross-examining respondent and from presenting psychiatric evidence of its own. Counsel did not request a presentence report because it would have included respondent’s criminal history and thereby would have undermined the claim of no significant prior criminal record.”*
And the court’s opinion concluded:
“The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.”
It seems to me the Strickland case was fair in that the attorney used his best judgement, while the case that Minty referred to included no judgement on the part of an atorney who was asleep and thus incapable of using judgement during the trial.
I go with questioning Judge Jones’ fitness should she be nominated.
First of all, I’d commend you for digging up one of the cases. That’s one case more than many lawyers I’ve worked against would do.
Absolutely true. But a court of appeals doesn’t have the authority to ignore the orders of the Supreme Court.
Here’s the deal – the Supreme Court is the ultimate interpreter of the Constitution. When the Supreme Court sets forth a test for determining whether a Constitutional right has been violated, all the other courts are required to apply that test. They don’t get to make up their own tests. They’re inferior courts, and the Supreme Court is their boss. Sometimes the result is going to piss you off, but as a judge, it’s your sworn duty to uphold the rule of law. You don’t get to decide cases based on emotion; you decide them based on the law.
And merely pointing to superficial differences in the cases is not enough. There are always going to be differences in the cases. That’s not enough to ignore the Supreme Court’s dictates.
And despite your cites to Stickland, you apparently missed this (citations omitted):
In other words, even if we were absolutely positive that the attorney screwed up – for example, he stood up, pointed at his client, and yelled, “He’s guilty!” – the defendant still wasn’t deprived of ineffective counsel unless it likely effected the outcome of trial. It doesn’t matter if the trial is potentially unfair, there has been no deprivation of the right to counsel unless the error effected the judgment.
But “fair or not fair” isn’t the only test. You’re ignoring the 2nd prong of the test. Did it effect the outcome of the trial? And nobody can show that it did.
Plus, there were other cases that Jones looked at in reaching her conclusion.
You gotta be kidding me.
You read one case, and it wasn’t even one that Jones decided. And after thinking about the issue for all of 5 minutes, you’ve decided that Jones’s decision makes her unfit to be a judge?
Never mind that the Senate’s roll in the whole process is to “advise and consent” only, now you’re going to judge fitness based on whether the judge decided all cases in the same way as you – a non-lawyer with no knowledge of the subject matter, and without even reading a case she decided?
Wonderful. It’s a wonder anyone gets any nominees through the Senate these days when a candidate’s fitness can be challenged based on the fact that he/she decided a case differently than someone with no knowledge of the facts or law.
This type of attitude absolutely kills me. Why do people think that someone that disagrees with them must be an idiot? Do they not see that reasonable minds can differ on a variety of subjects? And why do I suspect you’d challenge the fitness of every conservative nominated?
I am well aware of the IAC standards, Age Quod Agis. (I have good reason to keep abreast of death penalty cases, particularly in the 5th Circuit.) I would suggest, however, that the inflexible application of Judge Jones’ favored precedents in Burdine resulted in a manifest injustice–particularly given that other precedents supported the relief requested by Mr. Burdine and granted by the federal district court that Judge Jones went out of her way to reverse. And in fact, the rest of the Fifth Circuit seems to agree with me on that point, since her majority opinion on the initial panel decision was soundly reversed by the en banc court on rehearing, 10-4.
I stand by my previous statement.
And just so that I’m not misunderstood here:
I do not question Jones’ fitness as a jurist. My reasons for opposing her nomination–should she actually be nominated, which is far from given–are the most noble-minded of all: She is an extremist whose politics are anathema to me.
Contrast that with another one highly likely Supreme Court nominee whose politics are (or at least were) acceptable to me, but whom I personally consider unfit for the highest judicial office in the land.
And good god, can we finally get somebody in there who will make the damn court take a couple hundred cases a year? Jesus, these guys are such incredible pussies when it comes to granting cert.
Well, I don’t call the difference between a counsel who made decisions based on his or her best judgement as compared to a sleeping counsel a “superficial difference.” And I know that I haven’t any experience in law, but I have a little experience in life and I’ll bet that judges make distinctions in ‘this particular case’ in order to avoid applying a precedent that seems out of line for ‘this particular case’ all the time. What’s the worst that could happen if the Supreme Court doesn’t agree? You get reversed?
And I know that a court can say this easily but it still seems to me to be a terrible burden to put on the defendant.
OK, “unfit” was somewhat over the top and was a poor choice of words. I didn’t mean to imply that Jones is unfit to be a judge, but Supreme Court judges are another thing. I’ve followed Minty’s posts and found him knowledgeable so I depended some on his input as to whether or not Jones would be a good choice. I also remember being somewhat put off when I read about the case of the sleeping lawyer.
Gee, take a breath. I must have really pissed you off!
And this is another thing about the process. It seems to me that there is very little “advise” to it. I suppose the President, or his staff, feels around to get soundings about acceptable nominees, which isn’t "advice’ in my book, and then picks one that suits his fancy and whom he thinks can get confirmed.
Don’t get excited. I don’t really think that my little old post on SDMB is going to carry a lot of weight in the confirmation process, do you?
Well, I sort of get the feeling that you hold that opinion.
Yes, and I acknowledged this in an earlier post. But this isn’t exactly a huge amount of power if you think about it. If a justice agrees with the majority on outcome but disagrees with the broadness or narrowness of the majority opinion, he or she can just write a concurring opinion. This is hardly uncommon.
Billdo, I acknowledge your quibble as correct.
Supreme Court precedent required nothing of the sort. I used to office in the same building as Judge Jones and was drinking buddies with her clerks; we were on the same trivia team in the Houston Young Lawyer’s Association (we won). My visceral reaction is that Judge Jones reversed Judge Hittner because, had he been duly tried and convicted in a Texas state Court, Edith Jones would be loathe to overturn the death penalty of Jesus Christ himself.
What Supreme Court precedent required is that the defendant not be denied counsel at a critical stage of his trial. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Cronic was delivered the ame day as Strickland and stated that “[t]here are … circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” The Court went on to say that prejudice need not be shown when counsel “was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” The Ninth Cirucuit had already found that such a condition existed when defense counsel was shownto have slept through substantial portions of a trial, saying that “such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary” Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984).
At the state habeas hearing, four credible witnesses (three jurors and a deputy clerk) stated that defense attorney Joe Cannon fell asleep up to ten times during the trial for periods as long as ten minutes. Judge Jones was in no way required to find that because the periods during which Cannon slept were subject to question, no predjuce could be shown. The State in argument conceded it was bound to the state court finding of fact that “defense counsel repeatedly dozed and/or actually slept during substantial portions of [Burdine’s] capital murder trial”. It was well settled precedent that if the surrounding circumstances justify a presumption of ineffectiveness, a Sixth Amendment claim can be sufficient without inquiry into counsel’s actual performance at trial. Cronic, 466 U.S. at 662. Judge Jones was basically saying that sleeping through what legally had to be considered substantial portions of the trial was not a presumption of ineffectiveness and not a denial of the Sixth Amendment right to counsel. Finding that Burdine had recieved ineffctive assistence of counsel didn’t require ignoring precedent at all; there was plenty of primary and secondary authority that would have favored the opposite ruling. Judge Jones disregarded as much precedent as she followed.
Fair enough. minty is obviously a good source, as is pravnick (who also thinks that Jones got the decision wrong).
If my words seemed overly harsh, then I apologize. I didn’t mean to attack you personally, but the issue of judicial confirmation is one of my hot buttons. I hate the filibuster and declination of judicial nominees for political reasons when it’s done by Republicans, and I hate it when it’s done by Democrats. And the attitude that it’s perfectly kosher seems to be seeping into the public mainstream. That chaps my hide. But that’s no reason to come across like a jerk, and I should have taken more care not to do that.
Well, if Jesus Christ himself were sentenced to death, then the law requires that any judge be loath to overturn it. But I see your point, and I defer to your knowledge of Jones’s personality.
First of all, I think that similar (or perhaps identical) exceptions were listed in Strickland. But that begs the question, what’s a “critical stage of the proceeding”? And by reading Strickland and Cronic together, the best conclusion is that the test for whether the attorney was absent (or asleep) during a critical stage of the proceeding is whether the attorney’s absence likely effected the outcome of the trial.
So had the 2nd Circuit. See Tippins v. Walker, 77 F.3d 682, 685-90 (2d Cir. 1996). However, now the three Courts of Appeals have three different tests for determining whether sleeping at trial is a deprivation of the right to effective counsel.
So while I would prefer that sleeping was a deprivation of the right to effective counsel, and I admit that every Circuit court that’s heard the issue has agreed with your reading, I still don’t think it’s the correct reading of precedent. But obviously the authorities disagree with me and Jones on this one.
I agree that the whole process of appointing Supreme Court justices is out of whack. I read the original intent, if that hackneyed phrase is applicable, of the framers as having the Congress and the Executive work in concert to find and place on the courts someone that satisfies both.
After all, we are not choosing a member of the President’s staff here but rather a member of one of the three equal branches of government whose task impinges on the Congress as much as on the executive. I don’t like the idea that the President consults no one except his own staff to find candidates and seems to consult Congress only to test the confimation waters of people chosen by him alone.
I think “… with the advice and consent …” should mean exactly that. Advice and consent.
Another poster to the thread suggested Robert Bork. I hope that was in jest. I had occasion to hear Bork on The News Hour with Jim Lehrer one night. The subject was a then recent Court ruling and there was an attorney who agreed with the ruling and Bork who disagreed. The attorney who agreed with the Court had been one of those in the winning side who had argued the case that the court decided.
During the News Hour piece, almost every argument that Bork advanced as to why he disagreed was answered by his opponent with the statement that the exact point had been raised before the Court and dismissed by it as either not relevant or insufficient cause for them to rule in favor of the side that lost.
Bork had obviously not specifically prepared for the TV interview but depended on his generalized knowledge of the law without finding out the particulars of the case. And, of course, his opponent was intimately familiar with the facts, having argued the case before the Court.
I decided then and there that if I needed someone to charge up hill carrying only a .45 pistol against and enemy of unknown strength and position I would select Bork, but I didn’t want him anywhere near the Supreme Court as a justice.
Plus, have you ever looked at “Slouching Towards Gommorah?” I looked at it in the bookstore once and it’s really a pathetic excuse for a book by someone who fancies himself as some sort of intelligent thinker. I used to think Bork was an intelligent thinker who was also, from my political point of view, nuts. Now I believe I only had it half-right.
[QUOTE=David Simmons]
I read the original intent, if that hackneyed phrase is applicable, of the framers as having the Congress and the Executive work in concert to find and place on the courts someone that satisfies both.
[QUOTE]
When I read “advise and consent,” I think that it’s the President’s nomination. Congress is on the outside and can only reject a jurist for being unfit. That’s going to result in a lot wider swings in judicial philosophy being appointed to the bench, but I don’t think that’s necessarily a bad thing.
As for Bork, it’s interesting (to me) that after his nomination to the Supreme Court was ground into pulp, set on fire, and launched into outer space, Reagan nominated Anthony Kennedy, who the Democratic Senate approved. But what’s truly ironic is that Anthony Kennedy was generally thought to be more conservative, and a less able jurist, than Bork. The Supreme Court had reversed a few of Kennedy’s civil rights decisions as an appellate court judge, but Bork had never been reversed. Bork was generally thought to be one of the brightest judicial minds in the country. (The luster has gone off his status, but he’s still well respected in all camps.)
Add in the fact that Kennedy is younger, healthier, and doesn’t smoke (Bork has an affinity for cigars), and it seemed likely that the Dems actually rejected Bork, an esteemed jurist that is less consistently conservative and who would likely have died or retired earlier, in favor of a conservative standard who would live forever.